Tariff Classification of Hydraulic Mine Roof Shield Supports

DEPARTMENT OF THE TREASURY

Customs Service

Tariff Classification of Hydraulic Mine Roof Shield Supports

AGENCY: U.S. Customs Service, Department of the Treasury.

ACTION: Proposed change of practice; solicitation of comments.

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SUMMARY: This notice advises the public that Customs proposes a change

of practice regarding the classification of hydraulic mine roof shield

supports under the Harmonized Tariff Schedule of the United States

(HTSUS). Customs has a uniform and established practice of classifying

shield supports under subheading 8430.50.50, HTSUS, which provides for

other self-propelled excavating machinery. Customs intends to change

this practice to reflect the proper classification of the shield

supports under subheading 8479.89.95, HTSUS, which provides for other

machines and mechanical appliances having individual functions, not

specified or included elsewhere in this chapter.

If this proposed change is adopted, those rulings which are

inconsistent with our current practice would be revoked. We believe

such action would affect only the classification of the hydraulic mine

roof shield supports. Before adopting this proposed change,

consideration will be given to any written comments timely submitted in

response to publication of this document.

DATES: Comments must be received on or before February 4, 1997.

ADDRESSES: Written comments (preferably in triplicate) may be addressed

to U.S. Customs Service, Office of Regulations and Rulings, 1301

Constitution Avenue, N.W., (Franklin Court), Washington, D.C. 20229.

Comments submitted may be inspected at the Office of Regulations and

Rulings, located at Franklin Court, 1099 14th Street, N.W., Suite 4000,

Washington, D.C.

FOR FURTHER INFORMATION CONTACT: Larry Ordet, Tariff Classification

Appeals Division, (202) 482-7030.

SUPPLEMENTARY INFORMATION:

Background

Self-propelled, hydraulic mine roof shield supports are used in

underground coal mining. They are one of three machines of a long wall

mining system. The system consists of: (1) A cutting device (shearer)

which removes coal as it moves along the face of a coal deposit; (2) a

face conveyor, located underneath the cutting tool, which transports

the coal as it is removed; and (3) an advancing mechanism and shield

support which serve as a platform for (1) and (2). The shield supports

are installed side by side along the face of an underground coal seam

to form a continuous overhead canopy which cantilevers over the shearer

and face conveyor. The supports prevent the mine roof from collapsing

onto these machines as the coal is removed. The supports also move the

entire system forward. No single component can function as coal cutting

machinery without the other two components.

Customs position with regard to the classification of self-

advancing, hydraulic mine roof shield supports under the Tariff

Schedules of the United States (TSUS), the precursor to the HTSUS, was

expressed in C.I.E. 227-67, dated February 28, 1967. In C.I.E. 227-67,

we stated that ``[t]here is a uniform and established practice of

classifying equipment similar to the mechanized roof supports and the

hydraulic roof supports, Mk III, under the provision for extracting

machinery, whether or not stationary or mobile, for minerals or ores,

in item 664.05 * * *.'' Item 664.05, TSUS, provided for ``mechanical

shovels, coal-cutters, excavators, scrapers, bulldozers and other

excavating, levelling, boring and extracting machinery * * * for earth,

minerals or ores.'' This position was later followed in New York Ruling

Letter (NY) 802700, dated April 19, 1982, and NY 803104, dated June 16,

1982 (then, under item 664.08, TSUS).

Customs position with regard to the classification of shield

supports under the HTSUS was expressed in Headquarters Ruling Letter

(HQ) 084855, dated September 13, 1989. In HQ 084855, we held that the

shield supports were classifiable under subheading 8479.89.90 (now,

8479.89.95), HTSUS, which provides for other machines and mechanical

appliances having individual functions, not specified or included

elsewhere in this chapter. This decision was later affirmed, in HQ

950218 and HQ 950220, both dated April 17, 1992.

However, in Hemscheidt Corporation v. United States, 858 F.Supp.

223 (CIT 1994), the U.S. Court of International Trade determined that

the uniform and established practice of classifying the shield supports

as ``extracting'' machinery, established under the TSUS, survived

implementation of the HTSUS. The Court pointed out that Customs did not

publish notice in the Federal Register, in accordance with 19 U.S.C.

1315(d), of its intention to classify shield supports under heading

8479, HTSUS. Accordingly, the Court held that the shield supports were

properly classifiable under subheading 8430.50.50, HTSUS, which

provides for other self-propelled excavating or extracting machinery.

This decision was affirmed in Hemscheidt Corporation v. United States,

72 F.3d 868 (Fed. Cir. 1995).

It is Customs position that the shield supports cannot be

classified as excavating or extracting machinery under heading 8430,

HTSUS. The terms ``excavate'' and ``extract'' are not defined in the

HTSUS. When terms are not so defined, they are construed in accordance

with their common and commercial meaning. Nippon Kogasku (USA), Inc. v.

United States, 69 CCPA 89, 673 F.2d 380 (1982). Common and commercial

meaning may be determined by consulting dictionaries, lexicons,

scientific authorities and other reliable sources. C.J. Tower & Sons v.

United States, 69 CCPA 128, 673 F.2d 1268 (1982).

``Excavate'' is defined in Webster's Ninth New Collegiate

Dictionary, pg. 431 (1990), as follows: ``1: to form a cavity or hole

in 2: to form by hollowing 3: to dig out and remove 4: to expose to

view by or as if by digging away a covering.'' ``Extract'' is defined,

pg. 440, as follows: ``1 a: to draw forth * * * b: to pull or take out

forcibly * * * c: to obtain by much effort from someone unwilling * * *

2: to withdraw (as a juice or fraction) by physical or chemical

process.* * *.''

As coal is removed, the self-propelled shield supports prevent the

mine roof from collapsing onto the system's shearer and face conveyor.

The supports also move the entire system forward. They do not, however,

form a cavity or hole, dig out or remove, nor pull, take out, or

withdraw, any material. While the supports form a portion of a system

designed to excavate coal, the shield supports cannot, by themselves,

be considered ``excavating'' or ``extracting'' machinery.

This determination is supported by Harmonized Commodity Description

and Coding System Explanatory Note (EN) 84.30, pg. 1203, which states,

in pertinent part, that heading 8430, HTSUS, covers machinery ``for

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`attacking' the earth's crust (e.g., for cutting and breaking down

rock, earth, coal, etc.; earth excavation, digging, drilling, etc.), or

for preparing or compacting the terrain (e.g., scraping, levelling,

grading, tamping or rolling).'' The shield supports do not ``attack''

the earth's crust, nor do they prepare or compact the terrain.

Accordingly, based on the common meaning of the terms ``excavating''

and ``extracting,'' and the guidance of EN 84.30, the shield supports

cannot be classified under heading 8430, HTSUS.

Proposed Change of Practice

Customs believes that the shield supports are classifiable under

heading 8479, HTSUS, which provides for machines and mechanical

appliances having individual functions, not specified or included

elsewhere in the chapter. The function performed by the shield supports

is not described by any heading in the tariff schedule.

The shield supports prevent the mine roof from collapsing onto the

system's shearer and face conveyor. This function is distinct and

separable from that which is performed by the other components of the

long wall mining system, which is designed to cut and then transport

coal. While the supports also move the entire system forward, they do

not perform a cutting or (coal) transportation function. See EN 84.79

(for examples of devices having ``individual functions''). Accordingly,

the shield supports are classifiable under heading 8479, HTSUS,

specifically under subheading 8479.89.95, HTSUS.

Authority

This notice is published in accordance with section 177.10, Customs

Regulations (19 CFR 177.10).

Comments

Before adopting this proposed change in practice, consideration

will be given to any written comments timely submitted to Customs.

Comments submitted will be available for public inspection in

accordance with the Freedom of Information Act (5 U.S.C. 552), section

1.4, Treasury Department Regulations (31 CFR 1.4) and section

103.11(b), Customs Regulations (19 CFR 103.11(b)), on regular business

days between the hours of 9:00 a.m. and 4:30 p.m. at the Office of

Regulations and Rulings, Franklin Court, 1099 14th Street, N.W., Suite

4000, Washington, D.C.

Approved: November 7, 1996.

John P. Simpson,

Deputy Assistant Secretary of the Treasury.

George J. Weise,

Commissioner of Customs.

[FR Doc. 96-31010 Filed 12-5-96; 8:45 am]

BILLING CODE 4820-02-P